Farrakhan v. Gregoire

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January 5, 2010
Racial Justice
Restoring Voting Rights
Voting Rights & Elections

Farrakhan v. Gregoire
Voting After Criminal Conviction

Farrakhan v. Gregoire challenges Washington state's law that disenfranchises individuals in prison, parole and probation from voting. Plaintiffs assert that the law denies the right to vote on account of race.

In January, 2010, the Ninth Circuit held that Washington’s criminal disenfranchisement law does in fact violate the Voting Rights Act. The decision is the first in the country to find that, due to racial discrimination in the state’s criminal justice system, the felony disenfranchisement law results in the denial of the right to vote on account of race. In April 2010, the Ninth Circuit Court of Appeals ordered the case to be reheared en banc. 

On June 11, 2010, Brennan Center filed an amicus curiea brief in support of Plaintiffs-Appellants. Amicus briefs were also filed by re-entry groups, law enforcement officials, law professors, the American Civil Liberties Union, the Community Service Society, and the Constitutional Accountability Center. On September 21, 2010, the en banc panel in the Ninth Circuit heard oral argument on the case. To listen to the testimony, click here.

The Center has filed three other amicus briefs in support of this Voting Rights Act (VRA) challenge to the state of Washington’s felony disenfranchisement policy. A Brennan Center amicus curiea brief to the Ninth Circuit Court of Appeals in April 2001 focused on the district judge’s flawed analysis of the causal connection between felony disenfranchisement and racial bias necessary in order to prevail under the Voting Rights Act. Under the judge’s extremely narrow standard, the state’s felony disenfranchisement policy would not violate the Act because its disparate racial impact results from discrimination in the criminal justice system, not the challenged voting qualification itself. Such a test effectively reads a requirement of discriminatory intent back into the Voting Rights Act, something Congress has explicitly rejected.

On July 25, 2003, the Ninth Circuit overturned the district court’s decision, adopting much of the analysis in the Center’s amicus brief. The court held that racial bias in the criminal justice system is a relevant social and historical factor that courts may consider in determining whether disenfranchisement laws discriminate on account of race.

On February 24, 2004, the Ninth Circuit denied en banc review, over a seven-judge dissent. The state petitioned the United States Supreme Court for review, and the Center filed a brief arguing that the Court should deny review. We explained that any decision on the applicability of the Voting Rights Act in Farrakhan would not decide the question of the Act’s applicability to claims like those of our clients in Johnson v. Bush, who are challenging a permanent disenfranchisement regime in Florida that was originally adopted as part of a multifaceted scheme to deplete African American’s political power.

On November 8, 2004, the Supreme Court denied review. The case proceeded to trial in the Eastern District of Washington in March 2006 (referred by some as "Farrakhan II").

In July 2006, the district court ruled against plaintiffs, maintaining that the state’s felony disenfranchisement provision does not violate the VRA. Although the court concluded that it “has no doubt that members of racial minorities have experienced discrimination in Washington’s criminal justice system,” it held that “Washington’s history, or lack thereof, of racial bias in its electoral process and in its decision to enact the felon disenfranchisement provisions, counterbalance the contemporary discriminatory effects that result from the day-to-day functioning of Washington’s criminal justice system.”

 On December 11, 2006 the Center filed its third amicus brief in the case. In this brief, we represented the National Black Police Association and 20the National Lation Officers Association of America, as well as several prominent individual former law-enforcement officials, who share an interest inthe invalidation of felon disenfranchisement laws. We argued (1) that the Voting Rights Act permits and indeed requires reviewing courts to give serious consideration to whether the policy justifications for a voting practice are tenuous, and (2) that the state of Washington serves no legitimate penal interest by disenfranchising otherwise qualified citizens who have been convicted of a felony, including tens of thousands of African-American, Latino, and Native American citizens.

On January 5, 2010, the Ninth Circuit, in a 2-1 decision, reversed the District Court's decision on remand, claiming that Washington's constitutional provision regarding felony disenfranchisement is in violation of Section 2 of the Voting Rights Act.

For more information, visit NAACP LDF’s Farrakhan v. Gregoire webpage.

Rulings

 

Filings

 

Amicus Briefs